Civil_Procedure_I_Charles_Cerccone_Summer_2009.doc
***A from Michigan and B is from NY. B drives to Michigan and runs a red light and hits A. Where can A sue B? What law applies? How does A start the suit, and draft the paper? How does B respond?—they are the types of issues this course addresses.
Appeal- direct attack on the case
Collaterally attack- challenging a previous judgment by initiating a lawsuit in a different court on the same subject matter or validity of that judgment
If D defaults, this is basically the only option he has left
D cannot challenge the merit of a decision; so even if he were to default and bring 20 credible witnesses to an enforcement hearing to prove his innocence, the court would not care
Cannot litigate the same case twice
If D does not default, and challenges jurisdiction initially and loses, this means that the suit will now proceed and he can challenge the merit; normal trial
*Choice of Law Provision: one state could be made to abide by another state’s laws in certain lawsuits
* Final Judgment Rule: Cannot appeal anything until case is over in the district court level (applies to federal courts)
* Writ of Mandemas: appeal right to the US Supreme Court; interlocutory saying DC violated civil rights
A) Where a plaintiff decides to sue a defendant the state where he has decided to do it is the forum court where the original law suit takes place
Power helps you determine where a plaintiff can file a lawsuit; what state
Personal service is the summons which is a piece of paper issued by the court telling a person they have to be in court to respond to the charges; if not default will be entered against that person
The complaint tells the defendant what the basis of the lawsuit is
2 and 3 together equals notice
Attachment- sheriff files a notice with the county person of deeds, and that prevents the person from selling the property before the sheriff does
Writ of execution- the selling of the property
I. From overview of the class, the first question is what State would Cliff like to sue Vinnie and Mulligan’s?
a. Cliff would probably want to sue in Michigan, his home state because:
i. Home turf advantage, jury might be more sympathetic to him
ii. Cost would be less for Cliff is suing at home; convenience
iii. He must get lawyer, who may know judges other lawyers, and the rules of the state
iv. Cliff may think laws are more favorable to him b/c courts like to apply their own laws regardless of the location of the incident
II. Can a plaintiff sue in any state he chooses; “where” can he?
a. No because of jurisdiction/power to render an enforceable judgment
i. Enforceable Judgment: Cliff sues Vinnie and Mulligan’s in Michigan and V and M do no show up (a default) and he’s given decision
ii. Constitution says that if a court has the power to enter judgment against a person, sister courts must give “full faith and credit”
b. It’s not fair to say, “I want money from you and I’m going to take it based on a decision from people nowhere near you and removed from your situation.”
i. Mitchell gets his money, Pennoyer gets valuable property and Neff has no idea what’s going on (state of unfairness) b/c he was never given notice
c. Constitution says no state can deprive a person of property unless they provide defendants with due process of law (14th amendment)
i. Procedures by which the deprivation of that money occurs have to be regular/acceptable/due
ii. Regulates where person can be sued
iii. Must figure out what state will satisfy person’s due process rights
iv. Provision says P can’t file a suit in the state he or she merely chooses
v. State must have jurisdiction or it violate Due Process
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1) If a person is given a summons and complaint in the state where P wants to sue, that would give court power, or personal jurisdiction; then Full Faith and Credit would then apply (tag jurisdiction)
a. It’s a good way to get power b/c all states have power over people and property within their borders
b. Based on history; judges at this time were influenced by English common law
i. I.E., England had no jurisdiction over someone in France
ii. A sheriff could arrest someone wanted within English borders
iii. Arrest no longer applicable to civil suits, but being served equal to
iv. If person tagged and then leaves state, default entered, that decision is enforceable b/c person would know about the suit
c. Notice has no power outside of the borders of the state
i. What if Mitchell knows where Neff is and goes there and serves him, and then Neff defaults?
ii. Judgment is no good because no state can exercise direct jurisdiction/power and authority over persons or property within another state’s territory
iii. Do not want to encroach upon rights and prerogatives in other states, so that is why notice is no good outside the borders of a state
iv. Only way to get around this is to go where the defendant is and file suit there
d. OR Courts invented notion that D could go into a state to challenge jurisdiction w/o being tagged called special appearance.
-worker, for example
5) Allows state laws to establish what’s proper in state where D is served or where federal court is located
6) A corporation can be served by giving notice to officers/executive or someone higher up or their administrative assistant or to an appointed agent
Waiver
1) Asking D to relive P of his obligation to get D served b/c he’s not getting a process server
a. D would get form 5; if he agrees then he’d send back form 6
2) There are three reasons why D would want to waive:
a. Rules say D has an obligation to reduce costs of P trying to serve him
b. D could be charged for whatever it cost to get process server and atty. Fees
c. Gives D an extension of time to answer from 20 to 60 days; P would have to give him at least 30 days to answer before asking for his costs to provide service
d. If D waives, service is complete when it’s filed w/ the court’s clerk
3) Only means D is waiving his right to contest service and nothing else
36 days until stat expires. On day one, forms 5-6 along w/ complaint are sent to D. After 30 days, nothing is heard from D. I then hire process server. He serves D on day 37 after stat expires. D makes motion to dismiss. He’ll get it b/c of insufficiency of process
· Never want to use waiver of service when stat is about to expire
· D still incurs the cost in this instance
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2) Consent: If person leaves a state and appoints an agent to do things on his behalf, and gives power of attorney to that person, a state could get power by service to the agent
a. Or D submits to the power of jurisdiction
b. D has right to object to the power of that jurisdiction; if not seen as consent
c. A forum selection clause is a provision stating where the suit could be bought, such as “Any suit arising out of this contract will be settled in a Florida Court.” Agreeing would be consent of jurisdiction.
d. Survives even in modern law even there are no contacts w/ forum such as a forum selection clause
i. Corporation can do this as well, I.E. FL has stat saying corporation registering to do business there is consenting to jurisdiction
3) In rem jurisdiction: C has property in Michigan and sells it to B. A gives title and deed to property, but B does not give C a check. C wants deed back, but B has left the state. C can’t serve B in Michigan.
